NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. B.S and J.S.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3554-09T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

B.S.,

Defendant,

and

J.S.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF C.S., J.S.,

AND T.S.,

Minors.

_________________________________

May 12, 2011

Submitted March 15, 2011 - Decided

Before Judges Wefing, Baxter and Koblitz.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FN-18-224-08.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minors (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant father J.S. appeals the order of March 30, 2009, finding that he neglected his eleven-year-old son, John,1 by punching the child in the stomach during a physical altercation with John's mother B.S. After reviewing the record in light of the contentions advanced on appeal, we affirm.

On December 4, 2007, a physical fight occurred between the parents, J.S. and B.S., at their home. The police responded to the altercation and arrested J.S. B.S. was then granted a temporary restraining order (TRO) and was ultimately granted a final restraining order (FRO) against J.S. under the Prevention of Domestic Violence Act. N.J.S.A. 2C:25-17 to -35. The next day, on December 5, 2007, John complained of pain in his stomach. B.S. first took him to a pediatrician at Somerset Pediatrics who found blood in his urine and suggested she take John to the hospital. She then took him to Morristown Memorial Hospital. The Division of Youth and Family Services (Division) received a police referral the same day. The assigned caseworker, Sha-tee Malcolm, obtained a copy of John's medical records as part of her investigation. After an investigation, the Division substantiated abuse against J.S. based on the "family's past domestic violence history, the current case, and the possible injury that the child sustained, and the endangerment of the other two children that were there." The Division filed a verified complaint seeking the care and supervision of John and his two sisters. On February 23, and March 16, 2009, a Title 9 fact-finding hearing was held.

Both parents, the Division caseworker and the officer who responded to the home on the night of the altercation testified at the fact-finding hearing. B.S. testified to the following facts regarding the incident. She returned home from teaching religious education classes with John and his sister, Tracy, around 6:15 or 6:20 p.m. J.S. was upset that his dinner was not yet prepared because he "liked his dinner between 5:00 [and] 5:30 [p.m.]" B.S. began preparing dinner in the kitchen and poured herself a glass of wine from a bottle she had in the refrigerator.

J.S. then pushed B.S. several times until she fell backward and hit her head on the furniture. John intervened and told J.S. to "stop hurting mommy." J.S. responded that John should "stay out of it," and J.S. punched John in the stomach, back and head. B.S. tried to pull J.S. off John and admitted she could have scratched J.S.'s neck and back in the process. B.S. called out to her daughters to call the police. J.S. yelled, "you're not doing that to me again," and disconnected the phone. B.S. was unable to get the phone to work, and was searching for her cell phone when the police arrived.

B.S. also testified about two domestic violence incidents, in 2000 and 2003. The parties reconciled after both incidents.

According to B.S., J.S. was a strict disciplinarian. She said he believed that children were born evil and that you have to break their spirit, so he felt that spanking them was . . . the way to . . . break their spirit." She also believed that J.S. was harder on John than he was on the girls. B.S. explained that J.S. would tell the children to "assume the position" and then spank each child seven times. She said that if the children did not lie still, he would increase the spankings by seven. Further, she said that J.S. "felt that [it] was his Godly right, his fatherly right" to punish the children. J.S. also believed that alcohol was evil, and drinking alcohol was a subject of disagreement between J.S. and B.S.

Contrary to B.S., J.S. testified to the following facts regarding the incident. On December 4, 2007, he arrived home from work around 5:00 p.m. and prepared dinner for himself and his daughter, Cindy. When he was cleaning up after dinner, he found a bottle of wine in the refrigerator that was not there the night before. Since he did not like B.S. drinking, he poured the wine down the sink and filled it with water, "to let her know that I'm watching her drinking and I'm not happy with her excess drinking."

Then, B.S. came home around 6:45 p.m. with Tracy and John. She was upset that the wine was empty and left the house for half an hour. While B.S. was out of the house, Cindy and John had a "scuffle," and John hit Cindy in the chest with a plastic toy. J.S. explained to John that hitting was wrong and then disciplined him by spanking him. J.S. stated that John told him that Cindy had punched him in the stomach and she deserved to be punished.

After the "scuffle," J.S. separated the children and was sitting on the bed in his room with Cindy when B.S. returned home with a large bottle of wine. B.S. was upset and angry, and she came into the room with "a crazed look in her eye" trying to "punch him." B.S. kicked him in the ribs twice, and he grabbed her wrists, backed her out of the room and closed the door. B.S. came back into the bedroom with a hockey stick and began hitting J.S. Then, Cindy "screamed daddy's bleeding," and J.S. gathered his possessions, jumped out of the window, locked himself in the car and called the police.

When the police arrived, he told the officer he did not want his wife arrested, rather he wanted someone to "talk to her and straighten her out." The next day, J.S. filed a complaint against B.S., and a TRO was issued. The TRO was dismissed, and no FRO was entered. J.S. said he appealed.

Six days later, J.S. went to Somerset Medical Center because he had swelling around his ribs, arm and elbow. He was prescribed painkillers, and his arm was placed in a sling. On December 21, 2007, J.S. contacted the Division and reported an incident from November 24, 2007, when B.S. allegedly drove intoxicated with the children in the car. J.S. said he did not report the incident sooner because he was unaware of the Division hotline. Further, he said the children are not afraid of him, as reported to the Division, rather "someone is putting those thoughts in their mind."

Bridgewater Police Officer Adam Augliera testified at the hearing. He testified to the following facts. He responded to the altercation on December 4, 2007. J.S. told him that his wife, B.S., attacked him and she "claw[ed] at his neck with her fingernails," and then "came at him with a hockey stick." J.S. reported that the children were not harmed during the altercation, but acknowledged disciplining John earlier that day. Augliera spoke with B.S. who stated that she and J.S. had an argument about dinner, and J.S. began hitting John.

Augliera spoke to each of the children, and he testified that John appeared scared and hesitant to provide information. John told the officer that the fight started as a verbal argument but escalated into "blows [that were] initiated by [J.S.]" and that when John intervened, he was struck by J.S. Both girls told Augliera that they hid in their bedroom when the argument began. J.S. was arrested for simple assault, and a TRO was granted.

The caseworker also spoke with the children and testified at the hearing to the following facts. John's sisters told her that they hid in a closet during the altercation. John said that he tried to separate B.S. and J.S. because he wanted them to stop arguing, and his father hit him in the head and punched him in the stomach. All three children told her that B.S. disciplines them by taking things away, such as the television but J.S. disciplines them by spanking them. The girls said that J.S. also pulls their hair.

The Division sought to introduce John's medical records at the fact-finding hearing. J.S. objected to the admission of the medical records, arguing that the caseworker was "testifying about the contents of the medical records. She's not a medical professional. She didn't prepare those records. They're not DYFS' records. They are records from Morristown Memorial Hospital." After confirming with the caseworker that the records were certified by the hospital and that the caseworker reviewed them during her investigation, the court admitted the records because "this worker looked at these records during the course of her investigation" and relied on them. Regarding the diagnoses in the medical records, the court stated that it was "not accepting it necessarily for the truth of that matter asserted but that [the caseworker] reviewed them, she looked at them, relied on them." Further, the court noted that the rules of evidence "can be relaxed in the best interest of the children."

The court observed that because B.S. provided the doctor with information about how John sustained the injury, the admission of the hospital records was problematic. The court reasoned that although no medical expert testified, the court could draw an inference from the records that more likely than not John's medical condition was a result of his being struck in the stomach on December 4, 2007.

The court stated that the explanation for John's injury provided by J.S., that Cindy hit John, was "in [the] [c]ourt's estimation . . . nothing short of incredible." After recounting J.S.'s version of the events, the court noted that most of his testimony "was intended to humiliate or demean [B.S.]" The court also observed that J.S. "maintains he's the victim" even after a FRO was entered against him. The court noted that the children, the police officer and the caseworker's version of the events all indicated that J.S. was responsible for John's injury.

The court found that John made "contemporaneous remarks" to the officer identifying J.S. as the person who hit him and that the child's accounts of the events had been consistent. The court observed that John "was injured, he had blood in his urine [and] he required medical care. Based on the testimony and the evidence provided, the court found that the Division established that John "is at a substantial risk of harm for physical abuse from [J.S.]"

In September 2009, approximately six months after the hearing in this matter, B.S. moved out of New Jersey with the children.

On appeal, J.S. argues:

I. The Trial Court misapplied its discretion in admitting into evidence under an ad hoc "best interests of the child" exception to the rules of evidence preliminary and incomplete medical records and in relying on those medical records in finding that the defendant abused and neglected [john]

II. There was insufficient credible evidence to find that [john] was abused and neglected by the defendant

III. The findings of abuse and neglect should be reversed because the jurisdictional purpose of the Title 9 complaint against the defendant ceased to exist

Defendant challenges the trial court's finding that John was abused or neglected as a result of defendant's actions. On appeal, we defer to the trial court's findings of fact because the trial court "has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand [and] it has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). Deference is afforded to the trial court's findings of fact unless it is determined that the trial court "went so wide of the mark that the court was clearly mistaken." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Moreover, factual findings of Family Part judges are normally given special deference because of their expertise in the field of domestic relations. Cesare v. Cesare, 154 N.J. 394, 412 (1998).

Defendant J.S. correctly points out that a fact-finding hearing is a critical element of the abuse and neglect process. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264 (App. Div. 2002). J.S. is a substitute teacher and his inclusion in the Central Registry of substantiated child abusers resulting from the fact-finding, pursuant to N.J.S.A. 9:6-8.11, may well limit his employment opportunities. N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 27 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005).

J.S. argues that the court improperly admitted into evidence the medical records from the hospital where John was taken the day after the incident. A trial court's decision to admit or exclude evidence is reviewed under an abuse of discretion standard. Verdicchio v. Ricca, 179 N.J. 1, 34 (2004). "[U]nless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide [of] the mark that a manifest denial of justice resulted," the decision will be sustained. Ibid. (internal quotation marks and citation omitted).

Through the admission of "competent, material and relevant evidence," the Division must prove by a preponderance of the evidence that the child was abused or neglected. N.J.S.A. 9:6-8.46(b). See N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 398 (2009). Recently, the Court provided guidance for the admission of documentary evidence under N.J.S.A. 9:6-8.46. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 345-46 (2010). N.J.S.A. 9:6-8.46(a)(3) provides in pertinent part that in Title 9 abuse and neglect cases

any writing, record or photograph, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any condition, act, transaction, occurrence or event relating to a child in an abuse or neglect proceeding of any hospital or any other public or private institution or agency shall be admissible in evidence in proof of that condition, act, transaction, occurrence or event, if the judge finds that it was made in the regular course of the business of any hospital or any other public or private institution or agency, and that it was in the regular course of such business to make it, at the time of the condition, act, transaction, occurrence or event, or within a reasonable time thereafter, shall be prima facie evidence of the facts contained in such certification. A certification by someone other than the head of the hospital or agency shall be accompanied by a photocopy of a delegation of authority signed by both the head of the hospital or agency and by such other employees. All other circumstances of the making of the memorandum, record or photograph, including lack of personal knowledge of the making, may be proved to affect its weight, but they shall not affect its admissibility[.]

[N.J.S.A. 9:6-8.46(a)(3) (emphasis added).]

The Supreme Court observed that the "key to the admissibility of documents . . . is whether the evidence was created 'in the regular course of the business of any hospital or any other public or private institution or agency.'" M.C. III, supra, 201 N.J. at 346 (quoting N.J.S.A. 9:6-8.46(a)(3)). Further, Rule 5:12-4(d) permits the Division "to submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel or professional consultants. Conclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal." R. 5:12-4(d).

The medical records substantiated that John had blood in his urine. To the extent that the court relied on the records as evidence of who caused John s injury, such reliance was misplaced. Both parents acknowledged that John was hit in the stomach. His father said John told him the injury was caused by John s sister. John reported to the police and the Division caseworker that the injury was caused by his father. The identity of the assailant as reported to the hospital by the mother was hearsay, a prior consistent statement made by a witness, which is ordinarily inadmissible by a proponent. N.J.R.E. 607. J.S. objects that the medical records were preliminary and based on the mother s report so the diagnosis of blunt abdominal trauma should not have been considered by the court. We agree that information as to the cause of the injury contained in the records should not have been considered by the court. The records, however, indisputably report hematuria," or blood in the urine. This diagnosis is consistent with the testimony presented by Officer Augliera, the Division caseworker and B.S., all of whom were found credible by the court. The court found J.S.'s testimony unbelievable. To the extent that the court relied on the hospital records to determine the identity of John s assailant, such reliance constituted harmless error in light of the overwhelming credible evidence that J.S. hit his son in the stomach. R. 2:10-2.

Defendant contends that the trial court erred when it accepted the facts related by Officer Augliera because Augliera's testimony was based upon the credibility of those he interviewed. We disagree. The court found Augliera credible because he "recalled the events," "was straightforward" and "didn't seem prone to exaggerate any particular event[]." The court well understood that when Augliera related the comments of others, the truth of the content of those statements depended on the credibility of those reporting the events.

The court also formed its own opinion about the statements made by John to Augliera. Specifically, the court found that John made the statements to Augliera right after the incident, and also that John "stuck with that story." Although the statements made by John to Augliera were hearsay, such statements are admissible under N.J.S.A. 9:6-8.46(a)(4). Under N.J.S.A. 9:6-8.46(a)(4) "previous statements made by the child relating to any allegations of abuse or neglect [are] admissible in evidence; provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect." The Supreme Court has held that, "a child's hearsay statement may be admitted into evidence, but may not be the sole basis for a finding of abuse or neglect." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011). John's statements made to Augliera were corroborated by the testimony of B.S., and they were consistent with the statements John made to the caseworker. Thus, the statements were properly admitted.

Moreover, the court formed its own opinion about J.S., finding his story about how John sustained his injury to be incredible, noting that even after J.S. was found to be the aggressor, he continued to argue that he was the victim in the situation. The court s credibility determination was not "so wide of the mark that [it] was clearly mistaken." G.L., supra, 191 N.J. at 605.

J.S. argues that the trial court no longer had jurisdiction for purposes of the Title 9 complaint once B.S. and the children relocated to West Virginia on September 12, 2009, almost six months after the order presently on appeal was entered. At the time of the fact-finding decision, J.S. raised the possibility that B.S. would move out of state with the children. The issue of jurisdiction was not ripe at that time, was not decided by the court and is therefore not properly before us. Clearly, the court had jurisdiction at the time of the incident and at the time of the decision.

1 The son will be referred to by the fictitious name of John and his sisters, by "Cindy" and "Tracy" throughout this opinion.